This case is before us upon appellant's motion for rehearing, and in view of the fact that most of the contentions therein revolve substantially around certain points, we shall state the grounds thereof rather fully.
Appellant's bill of exception No. 15 sets forth that after having testified that the reputation for chastity of appellant's wife was bad at Athens, Texas, ten years prior to the time of the trial, a witness was asked, and stated over objection, that about said time appellant *Page 126 solicited him to go to his house for illicit intimacy with a woman, and that when he got to the house, he was directed by appellant to go to a certain room, within which he would find the party; and that within said room he found appellant's wife.
Bill of exception No. 17 sets forth that after having testified that the reputation of appellant's wife for chastity was bad at Mineral Wells,, and Athens, Texas, some thirteen years prior to the time of the trial, a witness was asked, and over objection stated that at Mineral Wells appellant solicited him to go to his house and engage in sexual intercourse with his wife that night, which he, the witness, did, and the next morning appellant came to the witness's place of business and told him that he forgot to pay his bill the night before, and that same was two dollars; that witness gave appellant $1 and promised him the remainder.
Bill of exception No. 18 sets forth that after having testified that the reputation for chastity of appellant's wife was bad at Mineral Wells and Athens, more than thirteen years prior to the time of the trial, a witness was permitted, over objection, to testify that at about said time he overheard a conversation between appellant and another man, in which the other party charged that appellant invited him to his house to have sexual intercourse with his wife, and that she had given him a bad disease, which appellant denied by the statement that "She couldn't have given it to you; she never had a bad disease in her life." That the other party insisted that she had.
In addition to urging that we have failed to pass on these bills in the original opinion, it is contended in this motion that the trial court's charge on manslaughter restricted same to those emotions of the mind arising from insulting conduct, and that there was no conduct of deceased in evidence which could come within the meaning of that term; and that the special charge on manslaughter asked by appellant should have been given.
Relative to these contentions, we observed that manslaughter, in appellant's opinion, was in the case, which fact is evidenced by his special charge on that proposition. As stated in the original opinion, the issue of manslaughter was raised by the testimony, in our opinion.
We further observed that the fact that appellant's wife was the cause of the killing is apparent, and that the degree of homicide, if unlawful, was to be determined by the attitude of appellant towards the deceased at the time, said attitude to be arrived at by the jury in the light of all the facts and circumstances in evidence.
Where it is claimed that the deceased broke up the family of the accused, and that the killing resulted therefrom, the husband has the right to have submitted to the jury the question as to whether the attentions of the deceased to his wife were sufficient to cause in his mind those emotions which reduce to manslaughter; but *Page 127 in such case, if it be suggested by the testimony that the wife is a prostitute and that the husband knew that fact, and that her prostitution ordinarily raises in his mind no anger, rage, or resentment, we would hold these very material matters, in order to enable the jury to determine in the instant case his real attitude, under all the facts and circumstances, toward the party slain, and to enable the jury to decide whether the killing resulted from malice or uncontrollable emotion. We do no violence to the evidence to say that appellant's own discussion and statements about his wife, in the instant case, appear to sufficiently establish the fact that she was in the unfortunate class named. Such being the case, it was pertinent and material to show the facts from which appellant's knowledge, consent to, and willingness for her to indulge in such conduct, would be inferred. The fact that such evidence covered a period of years, might affect its weight, but in the absence of evidence of some reform or change of habits or character, during such lapse of time, on the part of the wife, would not affect its admissibility. There seems to be no evidence in this record to indicate any change in the character of the wife prior to the time of this homicide, and it is abundantly established that a short time before said killing and without any apparent anger, rage, or resentment, the appellant discussed with various and sundry witnesses his wife's different recent lapses in this direction. This was fully discussed in the original opinion.
We further observe that all this evidence was admitted, and bears directly on the motive and mental condition of the accused, and is, therefore, not subject to the objection that it is an attack upon the reputation or character of the appellant. Proof of another crime, or of various facts becomes admissible and material as affecting motive in many cases, and is not subject to the criticism, or open to the objection, that it is inadmissible because it is an attack upon the reputation or character of the defendant.
If insulting conduct to a female relative be not the ground relied on to reduce this case to manslaughter, we are unable to perceive any other. It was without dispute that appellant and his wife were separated and that she had sued him for divorce and refused to make up with him; that deceased was keeping company with her, and, according to appellant's own testimony, told him in an interview between them a few days prior to the killing, that he intended to marry her. Appellant stated to the witness Green that on said occasion he told deceased of the character of his wife as a lewd woman, and endeavored to "break up Stokes' play house." It is evident, however, that after that deceased continued to keep company with the woman openly, and it was not claimed on behalf of appellant that his discovery of the fact that deceased was going with her was sudden, nor that said attentions were clandestine. *Page 128 We quoted from the court's charge on manslaughter in the original opinion, showing both a general and special application of the law of manslaughter to the facts of the case, and this appears to be sufficient.
The requested charge on manslaughter was as follows. "Special charge No. 5 requested by Defendant.
Gentlemen of the jury. You are instructed that if the defendant believed that the deceased had been guilty of keeping company with defendant's wife and that the deceased was instrumental in preventing the defendant's wife from returning to defendant and living with him, and that at the time of the homicide the defendant met the deceased and his, defendant's wife, in company with each other on the sidewalk at night, and if you believe that all of these facts taken together produced in the mind of the defendant such a degree of anger, rage, resentment or terror as to render it incapable of cool reflection and if defendant did while under the influence of such passion rendering his mind incapable of cool reflection kill the deceased, then in such event you cannot find the defendant guilty of a higher degree of homicide than manslaughter or if you have a reasonable doubt as to whether or not such facts did produce in the mind of defendant such a degree of anger, rage, resentment or terror as to render it incapable of cool reflection, then you will give the defendant the benefit of such doubt and find him guilty of no higher offense than manslaughter. You will give this charge equal weight with the main charge."
This charge is on the weight of the evidence, ignores the statutory requisite that the matters grouped therein must be adequate cause, and misapplies he doctrine of reasonable doubt. The three facts grouped in said charge could not reduce the killing to manslaughter unless, under the circumstances, they would have had that effect on a person of ordinary temper, situated as appellant was. So the existence in the minds of the jury of a reasonable doubt as to whether these facts produced in appellant's mind uncontrollable emotions, would certainly not have justified them in finding him guilty only of manslaughter.
We have carefully examined each contention of appellant, and investigated all of the authorities cited, but are unable to perceive any error in the original opinion; and the motion for rehearing is accordingly overruled.
Overruled. *Page 129